Mr. Fred Wilson <br />September 16, 2015 <br />Page 2 <br />(1) Statutes require the city to make this decision based on the standards; the boundary <br />line on the plan is one of the standards; the city, therefore, has the burden to set the <br />line correctly, not the applicant. <br />The city's statutory obligation to make this decision based on standards in its plan and code is <br />well known. ORS 227.170, 227.173, 227.175. The Hearings Official has previously explained <br />that ORS 227.173 gives the city the burden to show where the lines on its plans are, and it is the <br />applicant's burden to show its request is consistent with that line. See discussion in July 1 <br />Completeness Review Letter. Because the city has not yet explained where the line is, during the <br />entirety of Round I or up to this point in Round 11, the applicant has to propose a methodology, <br />which it has done here. <br />In response to the Hearings Official's query at the hearing, staff suggested that if the Hearings <br />Official disagrees with where the applicant has drawn the line, then the application should be <br />denied and the applicant can try again. We took heated umbrage with this position at the <br />hearing. Having guessed wrong at the location of the line in Round I, and not having the line <br />drawn by the city in the interim, this application requests R-1 zoning for whatever part of this <br />site is plan designated LDR. This reflects the city's burden to identify the standard, the fact that <br />the location of the plan line is ambiguous, and the applicant's entitlement to R-1 zoning for <br />whatever is LDR. <br />The staff's suggestion that we should keep guessing in successive applications until we guess <br />correctly misstates the burdens, and, as we opined in response to the staff suggestions at the <br />hearing, would turn the rezoning process into a very long, expensive game of finding the shell <br />with the pea under it. They applicant is already several hundred thousands of dollars and several <br />years into the guessing process. <br />The Hearings Official's obligation to make a decision based on the standards, and to explain that <br />decision with findings that identify the standards and state the facts relied upon (ORS 227.173) <br />requires a decision that locates the line. The decision to make here really can't say we have <br />missed the target again without saying where the target is. And because the applicant has asked <br />for R-1 zoning up to the line, an approval of R-1 zoning up to the line is necessary. <br />Making the applicant guess again would violate its substantive due process rights. In zoning <br />dispute cases, the principle of substantive due process assures property owners of the right to be <br />free from arbitrary or irrational zoning actions. Arroyo Vista Partners v. Cnty. of Santa Barbara, <br />732 F. Supp. 1046, 1053 (C.D. Cal. 1990). Here the applicant's right to R-1 zoning consistent <br />with the plan is a protected property right that would be denied by city action that is "clearly <br />arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or <br />general welfare." Sinaloa Lake Owners Assn. v. City of Simi Valley, 882 F.2d 1398, 1410 n. 14 <br />(9th Cir.1989). <br />Making the applicant guess again would also violate its procedural due process rights. The city's <br />"please guess again" procedures will have "deprived the plaintiff of rights, privileges, or <br />Laurel Ridge Record (Z 15-5) Page 49 <br />